A few months ago I was speaking at an informal gathering of men who were going through divorce. Although, the reasons for the breakdown of their marriages were different yet there was one common thread in their stories. They all were fathers and were deeply disturbed by the fact that they could not meet their children. One of the men was Abhik* who had been married for 15 years to Ajanta. Although, they had decided to separate two years after their marriage, Ajanta became pregnant and that changed things between them. They had a baby girl Jhilmil and they decided to give their marriage a second shot for the sake of their child. But when Jhilmil was about three years old they decided to file for divorce. They had agreed on all points of separation, except that of the custody of their daughter, who at that stage was a toddler. Their divorce case has been continuing for almost 10 years and they are still fighting over custody of the daughter. It is pitiable to see her in court, reduced to a pawn between her warring parents.

Husbands often play the game of one-upmanship by denying payments and wives do so by denying access to children. Ultimately, the child suffers…

While Abhik has been paying ₹30, 000 per month for the maintenance of Jhilmil, Ajanta tried her level best to restrict contact between father and daughter. Initially she succeeded but for the past few years Abhik has been getting somewhat regular access.

In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

The custody of children has so many nuances in law because custody is the final request of the divorcing parents. But the process of law takes so much time in court that whilst the proceedings are under way the parents always apply for access for meeting the child/children as the case may be.

In this context, a recent judgement of the Delhi High Court came as a breather for a number of men like Abhik. The court granted visitation rights to divorced fathers maintaining their children. The facts of the case as presented before the Court were that Suresh* and Sunita had been married for a few years. They had a young daughter Pari. When the parents were living together as a married couple Pari went to a posh school in Delhi and the father was looking after the needs of the mother and the daughter. After the divorce the father was ordered to pay a monthly maintenance of ₹25, 000 to his wife and another ₹25,000 to his daughter. Suresh had no problem in paying Pari but since he and his wife had parted ways he was not interested in maintaining her.

This is not unusual—husbands often play the game of one-upmanship by denying payments and wives do so by denying access to children. Ultimately, the child suffers the maximum psychological damage.

Judges Pradeep Nandrajog and Pratibha Rani noted that the husband’s family were better off than he was letting on:

“It is thus a classic case where one can safely say that the husband is not telling the truth regarding income ….when all was fine between the couple the daughter was studying in a premier school in Delhi…and we take judicial notice of the fact that the monthly fee, transportation and other charges paid were around 7,500 per month.”

Yet, even though Suresh was not forthcoming about his income, he was not remiss in paying for his daughter’s upkeep. The court took cognisance of this fact and noted:

“Though this is not a petition concerning the visitation rights of the parties, father who is ready and willing to pay maintenance for his daughter… We, therefore, permit the appellant to visit his daughter… and meet her in her [boarding] school. Necessary instructions in this regard shall be given by the respondent to the Principal of the school to enable the appellant to meet his daughter on her birthday, festivals or once in three months. The respondent shall provide the appellant necessary details about the contact number of the Principal as well as intimate him about the instructions given by her to the school authorities to enable them to permit the appellant to meet his daughter.”

The court granted him visitation because the father had mentioned that he had not been allowed to see his daughter.

In Abhik’s case too, he has been granted access to Jhilmil.

The Hon’ble Court has time and again in various judgements stated that the welfare of the child is supreme, and that he or she should be allowed to meet both parents.

If the court can recommend it, isn’t it time that warring couples realise that they can stop being husband and wife, but they can never stop being parents?

I am an award winning divorce lawyer, author, columnistand Social Entrepreneur on whom the BBC has made a documentary 'Invisible Women of India’. I am also the author of the bestseller 'Ex Files’, The Story of my divorce-published by Penguin under the Shobhaa De imprint, which has been launched by the Hon’ble Attorney General of India Mr. Mukul Rohatgi and the Hon'ble Chief Justice of Mumbai High Court, Mr. Mohit Shah.It has been endorsed by Lord Meghnad Desai, Padma Vibhushan Sonal Mansigh and it looks at divorce through a humorous lens.

Ex Files is now a part of the Judicial College syllabus.

My work as a social entrepreneur, where I set up India’s first support group -360 degrees back to life, has been lauded by Gloria Steinem, the world’s foremost feminist who has endorsed my previous book. I have also translated a book written by the Jain Saints. My work has been lauded both by the National as well as the International media. I have been a panellist frequently on BBC, NDTV amongst others and at various Literary Festivals.
Currently, I am contributing as a regular columnist on Law/Women Empowerment for Huffington Post India, Huffington Post America, Savvy, Dainik Bhaskar and I contribute about 20 articles a month for them under my by-line. I am also an occasional contributor for BBC. If you’d like to read more about my profile please visit my website www.vandanashah.com .

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Making The Right Choice Between Divorce And Judicial Separation

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